Ballinger v. Wingate, No. FA97-0541718 (CT 4/7/2004), FA97-0541718

• Decision Date: 07 April 2004
• Docket Number: No. FA97-0541718,FA97-0541718
• Court: Connecticut Supreme Court
• Parties: Theodora Ballinger v. Cornelius Wingate.

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Unpublished Opinion

Theodora Ballinger v. Cornelius Wingate.

No. FA97-0541718

Superior Court of Connecticut

Judicial District of New London at New London

April 7, 2004

MEMORANDUM OF DECISION

LIFSHITZ, MAGISTRATE.

The contested issue in this otherwise routine support case is the calculation of the arrearage for support due prior to the support petition. The court must determine whether provisions of the recently enacted Public Act No. 03-258, which purport to limit liability for child support for obligors incarcerated as the result of criminal convictions, apply retroactively to arrearages which accrue prior to the effective date of the statute. For the reasons hereinafter explained, the court holds that the statute does not apply retroactively.

Cornelius Wingate, Jr. was born in Brooklyn, New York on October 18, 1996, to the plaintiff mother Theodora Ballinger.¹ Subsequently, on March 25, 1997, The defendant signed an acknowledgment of paternity. This document together with the mother's affirmation and the required advisement of rights and information form, were filed with the Superior Court, as the law then required. The filing was the genesis of the present case. It is noteworthy that at the time he executed the acknowledgment the defendant stated his residence as Corrigan Correctional Institution. No further legal action was undertaken until the State of Connecticut filed this support petition in July 2003.

Both parties appeared on the initial court date, September 12. The defendant was unemployed, and the court, pursuant to General Statutes §46b-172(c)² ordered him to undertake a diligent job search. The defendant complied with that order, returning to court on November 7 with nearly full-time employment. After an evidentiary hearing support orders were entered in accordance with child support guidelines computations based on the actual income of both parties without deviation. The defendant was ordered to pay $62.80 per week plus $7.20 per week on arrearages and orders were rendered regarding medical insurance and unreimbursed medical and dental expenses.

The amount of arrearage for past due support was disputed. The defendant had held a number of previous jobs, some of them off the books, interspersed with periods of incarceration. In order to protect the independent financial interest of the child, the court appointed Attorney Robert W. Clark as guardian ad litem and counsel. The defendant was instructed to commence paying his support order, and the case was continued for further evidence as well as legal arguments on the arrearage issue.

The final hearing was held on February 6, 2004. From the testimony and documentary evidence at that hearing the court finds the following additional facts: When Cornelius, Jr. was born, the plaintiff and child resided in New York while the defendant lived locally. The defendant sent periodic $150.00 payments to help support his child. In January 1997, the plaintiff moved to Connecticut and the parties, although not married, lived together as an intact family.

At the end of January 1997, the defendant commenced serving time in the corrections system for drug-related criminal charges. While in the correctional facility Mr. Wingate performed prison jobs and was paid $5.25 per week. (Transcript pp. 38, 53.) The plaintiff decided to "move on with her life" and terminated their relationship. The plaintiff began receiving Temporary Family Assistance for the child in February 1997 and continued to do so until March 31, 2002, when she discontinued. The State of Connecticut paid a total of $31,875 accrued maintenance for the child.

The defendant completed his sentence and was discharged on January 24, 2000. He obtained a job at Farina's. He reported to the Department of Social Services investigator that he was earning $5.00 per hour at the time. Later in his testimony he described this as follows: "I was only temp, like on probation. So I was making like five, six, seven." (Transcript p. 26.) He later claimed he was earning minimum wage, which the Department of Social Services investigator testified was $6.15 per hour at the time. Subsequently Mr. Wingate was reincarcerated for violation of probation and was in the corrections system from June 15, 2001, until September 16, 2001. Upon release he was confined to his residence with an ankle bracelet for an additional three months. During that period of time he was not employed, although he claims he was "going to school." He then moved to Reno, Nevada, where he worked for a cleaning business owned by the plaintiff's brother's girlfriend's father. (Transcript p. 30.) He was paid $200 per week under the table for this work. He returned to Connecticut in a short time, obtaining employment at Ruby Tuesday Restaurant, earning $8.50 per hour.

He then moved to his present job at McDonald's. There is substantial evidence relating to his earnings at that job. At the previous hearing wherein the current support order was set at $62.80 per week, the court had before it the sworn financial affidavits of both parties, the employer's income disclosure statement solicited by the Department of Social Services, and several actual pay stubs provided by the defendant. The full guidelines computation which was adopted by the court appears in the court file.

I

The original acknowledgment of paternity for Cornelius, Jr., was filed with this court under the above-captioned docket number in 1997. Thus the defendant is liable for child support three years next preceding the date of filing of the acknowledgment. Jones v. Hall, 1 S.M.D. 1 (1987). In the present case this would extend liability back to the birth of the child.³ However, it is uncontroverted that the parties were an intact family until January 31, 1997. The child resided in the same family household. When the defendant was away, he worked and regularly provided money to support the household. There was no neglect or refusal to support the child. Hence there is no support arrearage prior to that date.

It is clear from the testimony of both parties that the family relationship was severed on February 1, 1997, when the defendant began serving his prison term. Accordingly, that date commences the period of liability for past due support. Before considering any arguments for deviation, this court is mandated to determine the presumptive amount of child support due under the child support guidelines based on actual income. Based on the best evidence of the parties' incomes over the periods of time in question and then calculating presumptive child support based on the child support guidelines worksheet, the following table indicates the calculation of the total presumptive support arrears:

                    Dates           P's        P's       D's       D's      Guidelines      #       Total
                                   Gross       Net      Gross      Net                    Weeks
                2/1/97-1/24/00      TFA        TFA     $  5.25    $  5.25    $ 0.525       156    $   81.90
                1/25/00-6/14/01     TFA        TFA     $200.00    $200.00    $41.00         73    $2,993.00
                6/15/01-9/16/01     TFA        TFA     $  5.25    $  5.25    $ 0.525        13    $    6.83
                9/17/01-3/31/02     TFA        TFA     $246.00    $209.00    $46.00         28    $1,288.00
                4/1/02-9/28/03    $300.00    $212.00   $330.00    $276.00    $66.00         77    $5,082.00
                9/28/03-11/07/3   $300.00    $194.20   $302.86    $264.23    $62.80          6    $  376.80
                                                                                                  _________
                TOTAL                                                                             $9,828.53
                

The foregoing computation would yield a total of $4,369.73 of the total as assigned to the State during the period during which Temporary Family Assistance [TFA] was granted on behalf of the child. The remainder, $5,458.80 is owed to the plaintiff as the custodial parent.

II

The child's attorney and guardian ad litem argue that with reference to the arrearage, the court should deviate upward based on a higher earning capacity of the defendant. The guardian argues this notwithstanding the provisions of Public Act No. 03-258 which mandates that child support for persons incarcerated must be computed based on actual income without deviation.⁴ The guardian does not challenge the validity of the statute. Rather, he argues that the provisions relating to incarcerated obligors must not be applied retroactively. He argues that the restriction on the discretion of the court to deviate is in derogation of the prior law and prejudicial to his client. In the absence of specific statutory language to the contrary, the statute should be construed as applying prospectively only from October 1, 2003, which was the effective date of the act.

The Assistant Attorney General agrees with the child's position. In final arguments, he stated: "I think that a language not being in the statute, I think that's conspicuous in its absence, your Honor. And I think the statute could've very easily been written to say that it's retroactive . . . They could've put that in the statute. And its absence suggests to me that maybe they didn't want it to go retroactive." (Transcript p. 44.)

The child's attorney as well as the plaintiff and the State rely on provisions of the child support guidelines allowing for a deviation based on earning capacity and a significant body of case law both in Connecticut and nationwide which hold that a person who commits a crime and is incarcerated after conviction should not be relieved of his child support obligation. The legislature has now clearly overridden both the courts and the child support guidelines commission by prohibiting deviations in the case of an incarcerated obligor. Before determining the issue of whether or not the public act applies retrospectively, it may be useful to review the development of the law in this State prior to the passage of the statute.

Connecticut law is clear...